Sripathi v Central Coast Local Health District

1. [1]

   HIS HONOUR: By notice of motion filed on 12 October 2021, the plaintiff seeks an order pursuant to s 82 of the Civil Procedure Act 2005 for an interim payment in the amount of $60,000. The application is opposed.

2. [2]

   The proceedings were commenced by statement of claim filed on 15 July 2020. The plaintiff alleges that he sustained catastrophic injuries as the result of the mismanagement of his birth at the defendant’s hospital in August 2015. He is now left with diplegic and ataxic type cerebral palsy with severe developmental cognitive impairment. It is alleged that the plaintiff’s injuries would have been averted if gestational diabetes had been diagnosed and appropriately treated during his mother’s pregnancy and if an early decision had been made to move to a Caesarean delivery. The plaintiff’s head was delivered using vacuum extraction and then shoulder dystocia was encountered which was difficult to overcome. The plaintiff was eventually delivered vaginally.

3. [3]

   On behalf of the plaintiff it is submitted that very substantial damages will be awarded in the event that the plaintiff succeeds. The plaintiff’s parents are in no financial position to provide adequate care at the required levels of support. Based upon expert rehabilitation opinion, the provision of assistance to the plaintiff will have a material effect upon his development. Conversely, any delay in the provision of adequate support at his age will inevitably have a substantial adverse impact upon his likely progress.

4. [4]

   For example, the plaintiff’s solicitor, Ms Gillian Potts, deposes to the following matters in her affidavit dated 11 October 2021:

5. [5]

   Ms Potts was not challenged on this evidence.

6. [6]

   Section 82 of the Act is in these relevant terms:

7. [7]

   The parties both drew attention to Forster v Hunter New England Area Health Service (2010) 77 NSWLR 495; [2010] NSWCA 106 concerning the interpretation and application of s 82(3)(c) of the Act:

8. [8]

   These principles are not controversial.

Defendant’s submissions

1. [9]

   The defendant did not dispute that if the plaintiff were to succeed in the proceedings, he would obtain an award of “substantial damages”. However, there was no agreement that the plaintiff could satisfy me on the evidence that he will succeed on liability.

2. [10]

   The plaintiff relies in that respect on two reports from Professor Michael O’Connor, an obstetrician and gynaecologist. While the plaintiff has also served a report from Dr Ken MacLean, a paediatrician and clinical geneticist, his report of 25 September 2020 goes to damages. While Dr MacLean also comments on which of the plaintiff’s conditions are related to his traumatic birth, the defendant does not put that issue in dispute for the purposes of this application.

3. [11]

   The defendant relies upon liability reports from Professor Alec Welsh, an obstetrician and gynaecologist and maternal-foetal specialist, dated 28 April 2021 and Dr Lucy Bowyer, an obstetrician and gynaecologist and maternal-foetal medicine specialist, dated 17 November 2021.

4. [12]

   The defendant submitted that even on the basis of a plain reading of the reports of Professor O’Connor on the one hand and Professor Welsh and Dr Bowyer on the other, this is self-evidently not a case like Forster, where the only significant evidence on the negligence issue strongly favoured the plaintiff. Professor Welsh and Dr Bowyer have engaged with the plaintiff’s allegations, considered the available treating records and concluded that his mother was appropriately managed during her pregnancy and her labour and delivery. While Dr Bowyer stated that in an ideal world, senior obstetric assistance would be available within five minutes of the foetal head being delivered, she went on to indicate that the obstetric consultant was summoned eight minutes following delivery of the foetal head and another consultant (who lived closer by) was summoned shortly after. In her view, neither senior obstetrician could have arrived in time to make a difference to the outcome. In circumstances where the defendant’s experts have explained why, on the facts of the plaintiff’s case and by reference to contemporary guidelines in respect of the management of gestational diabetes and shoulder dystocia, they believe the plaintiff’s mother was appropriately managed, the plaintiff cannot satisfy its evidentiary burden in this case.

5. [13]

   Beyond the content of the reports from Professor Welsh and Dr Bowyer, there are some limitations and apparent contradictions on the face of the evidence from Professor O’Connor on which the plaintiff relies. First, while criticising the management of the plaintiff’s mother’s gestational diabetes, Professor O’Connor omits any reference to her review by the Diabetes Educator on 19 August 2015 and her review by the Dietician and Diabetes Educator on 24 August 2015.

6. [14]

   Secondly, whereas Professor O’Connor suggests that the plaintiff’s mother was due to commence insulin after 27 August 2015, but is critical of the fact that this was never initiated, a plain reading of the notes made by the endocrinologist, Dr Darnell, on 24 August 2015, suggests that Professor O’Connor’s understanding is incorrect. Dr Darnell’s plan was that if blood glucose levels rose, then insulin was to be commenced, with scripts having been provided to cover that eventuality.

7. [15]

   Thirdly, while Professor O’Connor suggests that the hospital’s reliance on the single ultrasound estimate of foetal weight was not well-founded, he did not go on to suggest what should have occurred. That is, if Professor O’Connor believed that a further ultrasound should have been done and would have led to a certain course of management, he does not say so.

8. [16]

   Fourthly, Professor O’Connor suggests that allowing a poorly controlled gestational diabetic who had refused to take her prescribed insulin to undergo a 13-plus hour labour risks foetal hypoxia. However, earlier in the report, Professor O’Connor acknowledged that even on the basis of dietary control, the plaintiff’s mother’s blood sugars from 36 weeks appeared to be satisfactory (less than 8mmol/L on each occasion). That does not sit easily with the suggestion that the plaintiff’s mother was a poorly controlled gestational diabetic. Also inherent in that criticism by Professor O’Connor is the assumption that the plaintiff’s mother had refused to take her prescribed insulin. As noted above at [14], on the face of Dr Darnell’s clinical entry for 24 August 2015, it appears that Professor O’Connor has made an incorrect assumption.

9. [17]

   Finally, even if I were to be satisfied that the discretionary power to order an interim payment is engaged, the available evidence strongly suggests that any payment made will not be capable of recovery if the plaintiff fails in his claim.

10. [18]

    In summary, the available evidence does not establish to the applicable standard that if the proceedings went to trial, the plaintiff would obtain judgment for any sum. The discretionary power is not engaged. Further, the evidence as to the plaintiff’s parents’ means is a discretionary factor weighing against ordering an interim payment.

The plaintiff’s submissions

1. [19]

   The plaintiff responded to the defendant’s submissions as follows.

2. [20]

   The defendant submitted that its experts should be preferred on the basis that Professor O'Connor has made erroneous factual assumptions and that his opinion should be rejected. The plaintiff contended that this criticism of Professor O'Connor is inaccurate.

3. [21]

   In his supplementary report dated 23 November 2021, Professor O’Connor says that "If the gestational diabetes had been well controlled, then there would have been no necessity for the Endocrinologist/Diabetic Educator to recommend that [the plaintiff’s mother] commence insulin injections on 24 August 2015." It reasonably follows that Professor O'Connor was aware of the involvement of the diabetic educator, and that he has taken that into account in reaching his conclusions.

4. [22]

   The defendant suggests that Professor O'Connor's understanding regarding non-initiation of insulin treatment is incorrect. On page 3 of his supplementary report Professor O'Connor says:

5. [23]

   The plaintiff maintains that there is no misunderstanding on the part of Professor O'Connor. He correctly understood that insulin treatment was never commenced during the mother’s pregnancy. Professor O'Connor makes clear that he has this understanding on page 4 of his report:

6. [24]

   Professor O’Connor goes on to say that he “would argue that allowing a poorly controlled gestational diabetic who had refused to take her prescribed insulin to undergo a 13+ hour labour risked foetal hypoxia”. The critical issue is whether the plaintiff's mother commenced insulin treatment during her pregnancy, and Professor O'Connor correctly understands that this did not occur.

7. [25]

   The defendant correctly records that Professor O'Connor’s opinion that reliance upon a single ultrasound to determine foetal weight is not well-founded, but criticises him because "he did not go on and suggest what should have occurred". In his supplementary report, Professor O'Connor points to the lack of reliability of ultrasound examinations in estimating foetal weight in the context of predicting macrosomia and the significant risks of untreated gestational diabetes, stating that:

8. [26]

   Professor O'Connor further notes that:

9. [27]

   Professor O'Connor does indicate that the defendant ought to have discussed the risk of shoulder dystocia with the plaintiff’s mother before delivery, ought to have offered an elective or emergency Caesarean section, ought not to have allocated a trainee registrar to manage the plaintiff's birth and that the defendant's junior staff should have anticipated obstetric complications early so that visiting medical officers could be called in a timely fashion if required.

10. [28]

    Professor O'Connor was aware of the outcome of a short glucose challenge test performed on 7 July 2015, indicating 10.7 mmol/L. Based upon this result, Professor O'Connor states:

11. [29]

    In summary, the plaintiff maintained that the alleged factual errors which the defendant says should undermine the weight given to the opinion of Professor O'Connor have not been made out.

12. [30]

    With respect to the liability opinions relied upon by the defendant, Professor Welsh suggests that the trainee registrar “tried really hard and did her best, and even broke her hand in the process, and so she should not be criticised; that macrosomia was simply a big surprise; and that shoulder dystocia was impossible to predict”. Professor Welsh said:

13. [31]

    Professor Welsh appears then to overlook that a large baby was anticipated, which tends to undermine the suggestion that macrosomia was unexpected or that the possibility or probability of shoulder dystocia was unpredicted.

14. [32]

    Dr Bowyer's report attempts to highlight the "heroic" efforts of the trainee registrar, and places great emphasis on the ultrasound of 21 August 2015 estimating foetal weight of 3285g, in apparent dismissal of the unreliability of ultrasound scans. The plaintiff maintains that Dr Bowyer is taking a narrow and technical approach in this regard, and that her conclusion that

Consideration

1. [33]

   As will be apparent, the plaintiff relies upon the reports of Professor O’Connor, including his report dated 23 November 2021. It is comprehensive, detailed and thorough. It engages with the several issues raised by the defendant’s medical experts.

2. [34]

   The circumstances attending the plaintiff’s birth were difficult and complicated. They were ultimately influenced by a confluence of factors including his mother’s gestational diabetes, macrosomia, shoulder dystocia and the prospect of foetal hypoxia and even the risk of stillbirth.

3. [35]

   Inherent in Professor O’Connor’s analysis is that the risks that eventuated were capable of recognition well in advance of confinement and that steps could and should have been taken to allow and prepare for these much earlier. For example, it is implicit in Professor O’Connor’s criticisms that a senior obstetrician should have been in attendance at the birth.

4. [36]

   This issue is dealt with specifically by Dr Bowyer when asked in her 14 September 2021 report:

5. [37]

   In response to that question, Dr Bowyer provided the following answer:

6. [38]

   Dr Bowyer went on to express the following opinion:

7. [39]

   The statement of claim particularises 27 allegations of negligence. These include a failure either to advise the plaintiff’s mother to have a Caesarean delivery in general or to have discussed such an option in the light of her poorly controlled and lately diagnosed gestational diabetes with macrosomia. The defendant concedes that her diabetes was diagnosed late, although not by the defendant’s employees. The defendant disputes that there was detectable evidence of macrosomia. Professor O’Connor’s view is that the defendant should have detected macrosomia and offered an alternative to a vaginal delivery.

8. [40]

   In addition, one of the particulars of negligence asserts that the defendant failed to heed the mother’s requests during labour that she be given a Caesarean delivery. This is a factual issue that may or may not be in dispute. As far as I can determine, the experts have not been asked to address the suggestion that such a request, if made, should have been heeded or to place it in the context of the defendant’s reliance upon s 5O of the Civil Liability Act 2002.

9. [41]

   Dr Bowyer was asked to offer her opinion upon whether the defendant should have discussed with the plaintiff’s mother the increased potential for shoulder dystocia given that she had gestational diabetes. Dr Bowyer’s opinion was as follows:

10. [42]

    Dr Bowyer was also asked for her opinion about whether the defendant should have discussed the option of elective Caesarean section with the plaintiff’s mother in the light of her poorly controlled and lately diagnosed gestational diabetes with macrosomia. Dr Bowyer’s view was that there was no evidence that the plaintiff’s mother then had poorly controlled gestational diabetes or a macrosomic foetus.

11. [43]

    These opinions are furnished in support of the plaintiff’s reliance upon Professor O’Connor’s report which, in summary, asserts the following things. Following a poorly controlled gestational diabetic presentation by a woman who had refused to take her prescribed insulin, of which the defendant either was, or should have been aware, there was a risk of foetal hypoxia if she were to undergo a 13+ hour labour. The second stage of labour was not covered by epidural anaesthesia and therefore the risk of foetal hypoxia would have been increased in a 1 hour 46 minute second stage of labour. This was not a case for a trainee registrar to manage unassisted by a senior visiting medical officer. The registrar should have called for senior assistance within 2 minutes of the shoulder dystocia when it was apparent that simple manoeuvres, such as the McRobert’s manoeuvre, were not successful. Professor O’Connor expressly considered that there were indications to offer either an elective or emergency Caesarean section. He explained his reasons for holding that opinion. They included that the duration of the plaintiff’s mother’s untreated gestational diabetes was unknown and therefore the risk of foetal hyperglycaemia and foetal macrosomia were potentially high.

12. [44]

    Professor O’Connor also expressed the following opinion in this context:

13. [45]

    It is almost axiomatic that disputed applications for interim payments will usually turn upon contested expert opinions about liability, including s 5O issues, as well as contests about breach of duty and causation. Moreover, the final factual matrix upon which competing expert medical opinions will be based will usually, if not, by definition, always be unknown. That is the situation here.

14. [46]

    Doing the best I can, I am satisfied in the circumstances that, if the proceedings went to trial, the plaintiff would obtain a judgment for damages against the defendant. There is no dispute that those damages, if recovered, would be substantial. I am not required to be certain of that prospect. I am, however, satisfied on the balance of probabilities.

15. [47]

    As noted above, the defendant also opposes the making of an order for an interim payment upon the basis that the plaintiff is not, by reason of his family circumstances, likely to be able to repay the amount of the interim payment if ultimately he does not succeed. I do not understand that submission. Section 82 requires an assessment of the probability that the plaintiff will succeed. Once that assessment has been made favourably to the plaintiff, it forecloses, except in limited circumstances, the availability of some additional or further consideration, as if by way of a discretionary review, of that conclusion. Section 82(4)(c) certainly provides that I may not make an order for an interim payment if the defendant satisfies me that it would, having regard to the defendant's means and resources, suffer undue hardship if such a payment were to be made. Apart from the defendant’s concern that the money may not be repaid, about which the subsection is silent, the defendant does not suggest that a payment of $60,000 would cause it to suffer undue hardship.

16. [48]

    In my opinion, the plaintiff is entitled to the relief sought in the notice of motion.